Cox v. Capron

• Decision Date: 31 July 1847
• Parties: COX v. CAPRON.
• Court: Missouri Supreme Court

10 Mo. 691

COX

v.CAPRON.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM CLINTON CIRCUIT COURT.

McBRIDE, J.

James Cox instituted his action of trespass on the case in the Platte Circuit Court against Cyrus Capron for charging him with having committed perjury in a proceeding had before the County Court. The defendant pleaded three pleas: 1st, not guilty; 2nd, statute of limitations; 3rd, justification. The plaintiff took issue on the first, and demurred to the second and third pleas, which was sustained to the second and overruled to the third. A motion was then made by the plaintiff to strike out certain of the averments in the third plea, which was sustained, and the averments were struck out; thereupon, the plaintiff filed a replication to the third plea, and issue was taken thereto. Under this state of the pleadings, a trial was commenced before a jury, and after the evidence was closed, the defendant withdrew his plea of not guilty, and the court proceeded to instruct the jury, when the plaintiff took a non-suit, with leave to move to set the same aside, which being done, the non-suit was set aside. The plaintiff then applied for and obtained a change of venue to Clinton county.

In the Clinton Circuit Court, the plaintiff moved for a judgment of nil dicit against the defendant, because the third plea, as it then existed, was not an answer to the declaration; but the court overruled his motion and he excepted. The defendant then moved the court to set aside the order of the Platte Circuit Court expunging certain averments from his plea of justification, and for leave to reinstate the same in his said plea; which motion was sustained, and the expunged averments were reinstated in the plea: to this, the plaintiff likewise excepted. A trial was then had, and the plaintiff again took a non-suit, which he subsequently moved the court to set aside, but the court overruled his motion, and he excepted, and now brings the case here by appeal.

The evidence given in the cause is contained in the bill of exceptions, and consists of a copy of a record from the County Court of Platte county, showing a settlement by the plaintiff with that court of his accounts as administrator of the estate of Wakefield Cox, deceased. It will not be necessary to state further what the record contains, as the testimony of the witnesses will more clearly show what took place in the County Court.

James Kuykendall testified, that he was presiding justice of the County Court of Platte county at the time of the final settlement of the estate of Wakefield Cox, deceased, and, upon that settlement, a question arose upon the claim of James Cox, the administrator, the plaintiff, for a credit of $350 for a claim on public land of Wakefield Cox, deceased, which had been inventoried and charged against said Cox, as administrator. And the justices of the County Court having heard out of doors that said James Cox had sold said claim for $200, refused to allow him the credit for $350, until he should account for the proceeds of the sale of said claim; and thereupon, James Cox was introduced as a witness, at the January term, 18--, of said County Court, and at that term testified, among other things,--1, that he had not made a sale of said claim to Allen Chance; 2, that he had not told any person that he had entered the land; 3, that he had not appeared at the land office as a witness for Chance; 4, he had no knowledge of Chance's having gone on the land; 5, he had deposited money in the land office, but for no particular purpose; 6, he had not entered the land at the land office; 7, he had not told any person he had deposited money in the land office to enter the land particularly. The court, not being satisfied at that term, by the request of Cox, it was postponed until the next term of the court, at which term Chance was present and Cox was again sworn, and testified then that he did not know that Chance had gone on the claim, because he had not seen him, and did not know anything he had not seen. This was by way of explanation of his former testimony on that point. He said, also, at the last time, that he had filed an affidavit in the land office on some collateral matter, but had not been a witness for Chance in the land office. He testified that Wakefield Cox died in 1839; that said claim was worth about $500. On cross-examination, stated that Cox said in his testimony that he had told Chance he could show him, Chance, a claim that could be got for $200 and the entrance money. Cox said he had satisfied himself at the land office, that he could not make the affidavit required by law to enable him to enter the land. Cox also said, that he had his mother to support, and the proceeds of the land would enable him to do so more conveniently; that he had not told anyone he had entered the land; but told his mother the land was safe. Witness stated that he did not pretend to be able to give all the evidence of Cox on that trial; that he and Cox were not friendly, and that the general character of said Cox in the neighborhood was good up to the time of said swearing.

Matthew M. Hughes, another member of the County Court, testified to the same in substance.

Allen Chance testified, that he was sworn, and gave evidence on the claim of James Cox for a credit for the $350 for the claim of Wakefield Cox, deceased, on his final settlement of that estate; and that he also heard James Cox give evidence, who stated: 1. That he had not made a sale of that claim to the witness, Allen Chance. 2. That he had not told any person that he had entered the land. 3. That he had not appeared at the land office as a witness for Chance. 4. He had no knowledge of Chance having gone on the land. 5. He had not deposited money in the land office to enter that land, or any land in particular. 6. He had not entered the land at the land office. 7. He had not told any person that he had deposited money to enter that land particularly. He further testified that the testimony of said Cox was not true in the following: That he, witness, had bought the Wakefield Cox claim from said James Cox for the sum of two hundred dollars, which was in the first instance conditional, but afterwards, when he and Cox went into the land office, Cox then said that the sale must be unconditional; that he would not be responsible for the claim of the heirs; that the $200 for the consideration of the claim was paid by him to Cox. Secondly, witness said he had heard Cox tell several persons that he had entered the land, and Cox told witness he had told others for the purpose of putting them off their guard, that he might purchase it lower at the block. Thirdly, that Cox had not appeared at the land office as a witness, but had gone with him to enter the land, and made an affidavit to the effect that the heirs of Wakefield Cox did not intend to enter the land. Cox was one of the heirs. Fourthly, that Cox did have full knowledge of his, witness', going on the land, and he went on by arrangement with Cox. Fifth, gave no direct negative testimony. Sixth, same. Seventh, same.

James H. Burch testified, that he learned from Cox that the heirs of said decedent claimed said claim. Said Cox was not a witness to prove said Chance's pre-emption to said claim, but Cox filed an affidavit to the effect that the said heirs would not set up a claim to said claim; he had formed an impression unfavorable to said Cox, from his conduct, &c.

A. Young testified, that Saturday before the land sales, which was on the 11th November, 1843, said Cox told him, in Plattsburg, that he had entered the land.

H. Waller and ...